The Breyer Scale

Periodically, we will look at the current state of abolishing the Death Penalty in the Supreme Court. Last term, Justice Breyer advocated for declaring the Death Penalty unconstitutional in a dissent joined by Justice Ginsberg in Glossip v. Gross. Following the Hurst v. Florida decision the Breyer Scale stands as follows.

9 Justices Support Abolishing the Death Penalty: The Full Breyer.

8 Justices Support Abolishing the Death Penalty: The Cheese Stands Alone.

7 Justices Support Abolishing the Death Penalty: Thomas, Scalia, or Alito has Retired.

6 Justices Support Abolishing the Death Penalty: The Comfortable Liberal Majority.

5 Justices Support Abolishing the Death Penalty: The Slim Liberal Majority.

4 Justices Support Abolishing the Death Penalty: Somebody Pissed Off Kennedy.

3 Justices Support Abolishing the Death Penalty: Now We’re Getting Somewhere

2 Justices Support Abolishing the Death Penalty: Breyer on a Loveseat.

Hurst v Florida moved the Breyer Scale very little, as the Justices dealt only with the procedure of administering the Death Penalty and not anything more substantive. One could also argue that having the jury and the judge work together on making the decision could help the defendant, although in practice that is unlikely. Breyer himself wrote a concurrence that served only to vaguely affirm his disagreement with the current Court’s position on the Death Penalty. No other justice joined that concurrence.